IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Criminal Appeal Case No. 05/2013
In the matter between
MAZWI MESULI MBATHA
1st Appellant
SIKELELA MSIBI
2nd Appellant
And
REX
Neutral citation:
Respondent
Mazwi Mesuli Mbatha and Another vs Rex (05/2013) [2013]
SZSC 04 (31May 2013)
Coram:
S.A. MOORE JA. , E.A. OTA JA. and B.J. ODOKI JA.
Heard
06 MAY 2013
Delivered:
31 MAY 2013
Summary:
Criminal Law: Murder charge: The appellants were
found guilty of the offence of murder with extenuating
circumstances and robbery: They were sentenced to 15
years imprisonment respectively for the offence of
murder: Appeal against this sentence only: Appeal
dismissed.
1
JUDGMENT
OTA. JA
[1]
This is an appeal from the judgment of the High Court per Monageng J,
rendered on 29 October 2009. The Appellants were convicted and sentenced
on two counts of offences viz, murder and robbery. They were sentenced
respectively to 15 years imprisonment on the count of murder and 7 years
imprisonment on the count of robbery, which sentences were ordered to run
concurrently and were backdated to 6
March 2007, the date of arrest and
incarceration of the Appellants.
[2]
It is the sentence of 15 years for murder with extenuating circumstances that
the Appellants decry in this appeal.
[3]
The facts of this case are apposite at this juncture for a proper consideration
of the matter at hand.
2
[4]
On 5 March 2007, Mfanimpela Dlamini a security guard at an Asisitane
Shop belonging to
one Thandi Ngwenya, was murdered and the shop
robbed. The Appellants together with a third Accused person, Mbongeleni
Tso Msibi, were arrested and charged with the crimes. The third Accused
subsequently turned an accomplice witness and testified as PW1.
[5]
As so happens in this Kingdom as a prelude to this
vile offence, the
Appellants and PW1 had been imbibing traditional marula brew from around
midday on the fateful day. By midnight, having consumed about 50 litres of
the potent brew and being drunk, the trio proceeded to the Asisitane Shop
manned by the deceased who is their friend to buy cigarettes. They knocked
until the deceased answered and told them that the shop was closed and there
were no cigarettes. It was at that juncture that PW1 left the two Appellants
and went home.
[6]
The facts show that after PW1 departed the scene, the two Appellants broke
into the shop where they stabbed the deceased with two knives (described a
quo as okabi and Rambo respectively), inflicting multiple wounds on him;
after which they left him lying on the floor and proceeded into the main
shop.
Inside the shop they took the following items; some packets of
3
cigarettes, candles, batteries and other food items worth about E777.00 and
departed. They deposited the stolen items in a pit in PWl’s homestead and
thereafter fled the jurisdiction to PW3, 1st Appellants sister who is resident at
Piet Retief in South Africa.
[7]
The facts also show that the deceased managed to escape from the shop
whilst the Appellants were still in there and proceeded to the homestead of
his employer the owner of the shop which is about 5 minutes walk from the
shop, where he reported to the owner and PW2 her daughter, that he had
been attacked and stabbed by the Appellants and PW1. The deceased was
bleeding from the wounds inflicted on him. He was taken to the hospital
where he eventually died.
[8]
Suffice it to say that the police were alerted and PW1 was apprehended. The
Appellants eventually came back from Piet Retief South Africa and
surrendered themselves to the police, thereafter they made confessional
statements. On arraignment, they pleaded guilty to the charge, however the
learned
trial Judge
as she is required by law to do in view of the
connotations of the offence of murder charged, entered a plea of not guilty
and the trial proceeded as such.
4
[9]
It is upon the aforegoing facts that the court a quo, correctly in my view,
convicted the Appellants for murder with extenuating circumstances and
robbery, and sentenced them to 15 years imprisonment for the offence of
murder which is the bone of contention in this appeal.
[10]
The Appellants filed identical notices of appeal by way of letters addressed
to the Registrar of the High court, obviously drafted by either the Appellants
themselves or the now very well perceived ‘prison lawyers’. We are very
much alive to this group of the prison populace, judging by the deluge of
notices of appeal and heads of argument that beset this court in which the
unrepresented Appellants progressly in recent times, seek to adopt legal
language and in some instances, urge authorities which are completely out
of context.
[11]
Be that as it may, both Appellants respectively contend for a reduction of 5
years of their 15 years sentence on grounds that the sentence is too harsh and
severe for them to bear. The gravamen of this cause is that they are first
offenders; were very young and immature when they committed the crimes;
are remorseful as evidenced by the fact that they surrendered themselves to
and cooperated with the police and pleaded guilty; the commission of the
5
crime was not premeditated and they were non compos mentis, being very
drunk both prior to and during the commission of the offence.
[12]
I must say, that I am far from impressed with these factors which in my
view, constitute the now very familiar, old and tired repertoire of songs
rendered by such Appellants, who labour under the misconception that the
Supreme Court is a fountain of mercy, where they can just swing in and pick
up a reduction of sentence; notwithstanding the gravity of the offence
committed, its prevalence, the public perception of it; and most importantly,
the sentencing discretion which the law ascribes pre-eminently to the trial
court which saw the witnesses and heard their evidence.
[13]
The learning is that this court cannot usurp this discretion merely upon its
own whims and caprices. Its power to interfere is circumscribed within the
parameter of a material misdirection or irregularity in the exercise of same,
resulting in a miscarriage of justice. For instance, where the trial court was
biased; or where it considered irrelevant facts or failed to consider relevant
ones; exceeded its sentencing discretion; imposed a sentence not permitted
by law or where the sentence imposed is so unreasonable or disturbingly
dissappropriate to the gravity of the offence committed that it induces a
6
sense of shock. See Sam Dupont v Rex Criminal Appeal No. 4/08, Jonah
Tembe v Rex Criminal Appeal No. 18/08, Vusumuzi Lucky Sigudla v
Rex Criminal Appeal No. 01/2011, Xolani Zindle Nyandzeni v Rex
Criminal Appeal No. 29/2010.
[14]
The sentencing discretion is as such not an arbitrary discretion. It is a judicial
and judicious exercise predicated upon a consideration of all the relevant
factors, more particularly, the triad of circumstances consisting of the
offence, the offender and interest of the society. See S v Zinn 1969 (2) SA
537 (A), Bhekiwe Motsa v Rex Criminal Appeal No. 37/2010, Chicco
Fanyanya Iddi and Others v Rex Criminal Appeal No. 3/10 and 09/10.
[15] I should also observe here, that section 5 (3) of the Court of Appeal Act
74/1954, confers additional power on the court on an appeal against sentence
to pass such other sentence warranted in law as it thinks ought to have been
passed in the first place.
[16] Now, in my respectful opinion, the court a quo delicately balanced the triad,
which included the same mitigating factors which the Appellants advance in
this appeal. This, the court did in a bid to achieve the middle course which
7
lies between the too much and too little in its sentencing tenure. To this end,
her ladyship paid homage to the tendency of youthful exuberance borne out
of the Appellants ages of 23 and 21 respectively, at the time the offences
were committed. The fact that the 2nd Appellant is a first offender and that
both Appellants technically pleaded guilty to both counts of offences. She
also considered their remorse and cooperation with the police.
[17]
As she is mandated by law to, her ladyship went a step further to weigh the
aggravating factors in the balance. The fact that a human life had been
brutally snuffed out for goods worth only E777.00 and the fact that the 1st
Appellant is a subsequent offender having been convicted for the offence of
house breaking and theft in 2005. It was after this measured process that the
court imposed the assailed sentence.
I cannot fault the trepidation with
which the court a quo approached this issue.
[18]
I am also unable to agree with the Appellants that the sentence of 15 years
imposed is so unreasonable or startlingly disappropriate to the gravity of the
offence committed that it induces a sense of shock.
8
[19]
The facts of this case are disturbing enough. The deceased was a friend of
the Appellants who ended his life unceremoniously and thereafter fled these
shores without any show of contrition. The way and manner this barbaric act
was orchestrated is horrendous. The post mortem report demonstrates a
vicious attack with several serious stab wounds on the left side of the neck,
chest, umbilicus, heel of the right foot, left forearm, lungs, medisstinum and
upper arm. The deceased died from complication of these multiple stab
wounds. The deceased was in plain language, massacred as though he were a
wild animal. The Appellants displayed absolutely no respect for his life as a
human being.
[20]
The aforegoing picture captures the frightening trend that has permeated the
Kingdom. Human life is treated as though it is worthless; a little less than
one Lilangeni. It is snuffed out daily with audacity and impunity. The entire
Kingdom is almost under the siege of this carnage. This is a palpable evil,
lurking in the shadows, threatening to
consume us all if no desperate
measures are taken. I am bound to add here, that the irresponsible drinking
sprees which have become the norm rather than the exception in our society,
contribute in no small measures to this social ill. Such perpetrators blame it
all on alcohol, which of course, cannot speak for itself. The fact remains that
a life is gone; dead; buried six feet in mother earth; leaving behind loved
9
ones in pain and anguish and a society steeped in anger and outrage. Little
wonder then this Court has commendably and persistently held that
voluntary drunkenness has lost its spice as a mitigating factors.
[21]
Speaking on this issue in the case of Mbuso Sipho
Dlamini vs Rex
Criminal Appeal No. 34/2010, Ebrahim JA declared as follows:- .
“-------His consideration of the dangers inherent in the voluntary and
excessive consumption of alcohol should have been done before he took
the first sip. The subjects of this Kingdom must not be made to suffer the
loss of their lives because of persons such as the Appellant’s continuing
abuse of alcohol, which is a painful and mind affecting stimulate and
intoxicant. He who continues to abuse alcohol to such an extent that the
control of his voluntary actions is impaired, and then commits serious
crimes must face the full penal consequences of his conduct. Voluntary
drunkenness as a mitigating factor in cases such as this, has lost it’s
efficacy”
[22]
This is in recognition of the fact that life is sacred; life is priceless; life is
irreplaceable. Our Constitution Act 2005, is certainly alive to this fact.
Article 15 thereof guarantees the inalienable right to life of every Swazi.
That is also why the penal statutes make death the penalty for murder,
though Article 15 (2) of the Constitution reserves in the Court a discretion to
discount the sentence of death where it is just to do so. Article 15 (3)
however drives the message home by prescribing a sentence of life for this
offence, which life sentence it states shall not be less than twenty five years.
10
[23]
The mood of the society in this respect is thus inexorably apparent from the
panoply of laws paraded ante. The message is loud, clear and unequivocal,
that this heinous crime must be visited with appropriately stiff sentences as a
deterrent. Therefore, we all, the Swazi populace, the court and all other
organs of government bear the responsibility to respect, protect and uphold
this constitutional right to life.
[24]
The courts in a laudable effort to achieve this aim have over the years sought
to strike a balance in sentencing for this offence. What can be extrapolated
from local case law is that the approved range of sentencing is between 5 and
25 years, with the midpoint at 15 years see Samkeliso Madati Tsela v Rex
Criminal Appeal No. 20/10. This range serves as a
useful guide in
sentencing for same which the courts have progressively followed, the end
product dependant on the peculiar facts and circumstances of each case.
[25]
Thus, in the case of Sibusiso Goodie Sihlongonyane v Rex Criminal
Appeal No. 14/2010, the Appellant hacked his 85 years old grandmother to
death with a bushknife. The murder was actuated by a belief in witchcraft.
The High Court imposed a sentence of 27 years, which was reduced on
appeal to 15 years.
11
[26]
Furthermore, in the case of Khanyakwezwe
Dludlu v Rex Criminal
Appeal Case No. 33/2010, the Appellant was sentenced to 16 years for
murder, which was confirmed on appeal. The evidence showed that the
deceased died of hemorrhage as a result of multiple penetrating injuries to
the heart and left lung. The multiple wound sustained by the deceased
showed beyond any doubt that he had been subjected to a particularly
vicious attack and the trial Judge noted that “three photographs of the
deceased in situ graphically depict the gory reality of a murder most foul”.
[27]
Similarly, in the case of Xolani Zinhle Nyandzeni v Rex (Supra), the
Appellant had assaulted the deceased his brother by hitting him four (4)
times on the head with a hammer. He then proceeded to cut his head off
from this body with a knife. The post-mortem report disclosed that death was
due to multiple injuries and that the deceased had been decapitated. The
High Court sentenced the Appellant to 30 years for murder with extenuating
circumstances which was reduced on appeal to 25 years.
[28]
Then, there in the case of Thembinkosi Marapewu Simelane and Another
v Rex, Criminal Appeal Case No. 15/10 where the Appellants were
sentenced to 25 years imprisonment for murder with extenuating
12
circumstances. Both Appellants had assaulted an innocent and defenceless
woman with burning firewood. The deceased eventually died
from the
injuries sustained, which covered the whole of her body. Her frontal bone as
well as left temporal bone were fractured. On appeal the court substituted the
sentence of 25 years imposed on both Appellants a quo, with a sentence of
20 years for the 1st Appellant whom it found had a grudge against the
deceased thus deserving a sentence disparate from the 18 years imposed on
the younger 2nd Appellant who bore no such grudge.
[29]
Finally, it will be remiss of me not to mention, that the courts have
persistently held that murder actuated in the course of a robbery commanded
more punitive measures. Therefore, in the case of Jabulani Mzila Dlamini
and Another Criminal Appeal No. 16/2011, this Court upheld the
sentences of 22 years and 16 years for murder and robbery respectively
imposed on the Appellants. The Appellants had stabbed the deceased to
death in the process of robbing her of a cellphone valued at E500.00 and
cash in the sum of E160.00
[30]
Furthermore, in the case of Siyabonga Motsa v Rex Criminal Appeal No.
25/2010, the trial court imposed a sentence of 14 years on the Appellant for
13
the murder of one David Mdluli (the deceased). Like in this case the
Appellant in the company of others committed this offence in the course of
robbing the deceased and they had also been drinking. Though this sentence
was upheld on appeal, this court however noted that the sentence was not
sufficiently severe for the circumstances of the offence. See Siboniso
Mazibuko v Rex Criminal Appeal No. 07/2011.
[31]
In casu, I have hereinbefore demonstrated the gruesomeness of this murder
in paragraph [19] ante. It bears
no repitition, save to emphasize the
egregiousness of the offence committed in the pursuit of a robbery in which
the Appellants terminated the sacred life of their own friend. I do not think
that the learned Judge a quo erred in anyway in the sentences of 15 years
imposed and no basis exists for interfering therewith. In my respectful view,
the court a quo was too lenient in the face of the prevalence of this evil
which we must all join hands to stamp out in the interest of public peace and
order. Certainly, the offences called for more deterrent and denunciatory
measures. This will serve to bolster the confidence of the Swazi populace in
the machinery of justice and its ability to wholistically protect it from this
sort of mayhem.
14
[32]
In this regard, I call to mind the statement of the Rt Hon. Lord Denning,
made in his Memorandum submitted to the Royal Commission on
Capital Punishment, contained in the Minutes of Evidence of December
1, 1949; which is as follows:“Punishment is the way in which society expresses its denunciation of
wrong doing and, in order to maintain respect for law, it is essential
that the punishment inflicted for grave crimes should adequately
reflect the revulsion felt by the greatest majority of citizens for them.
It is a mistake to consider the objects of punishment as being
deterrent or reformative or preventive and nothing else. If that were
so, we should not send to prison a man who was guilty of motor
manslaughter, but only disqualify him from driving, but will public
opinion be content with this? The truth is that some crimes are so
outrageous that society insists on adequate punishment, because the
wrong doer deserves it, irrespective of whether it is deterrent or not --- In my view, the ultimate justification of any punishment is, not that
it is a deterrent, but that it is the emphatic denunciation by the
community of a crime”
[33]
Furthermore, in “Society’s Moral Right to punish: A Further Exploration
of the Denunciation Theory of Punishment” (1990 – 1991) (65 Tulane
Law Review ) 299 at 331-332, Ronald J Rychlak said this:“This theory holds that society must register its disapproval of
wrongful acts and reaffirm the values violated by these acts.
Punishment declares that this society will not tolerate this conduct,
regardless of any future deterrent effect------ One of the most visible
aims of denunciation is the maintenance of social cohension. The
most important aim of the denunciatory theory--- is to reassure the
majority of society that the system does work ---- denunciation serves
to satisfy the majority’s need to know that its rules (reflecting its
values and goals)
are being enforced . In other words,
denunciation shows law – abiding society not only that the criminal
system works, but that society itself works”
15
[34]
Finally, in the case of Nkosinathi Bright Thomo v Rex Criminal Appeal
No. 12/2010, para 21, Ebrahim JA succinctly put this principle
as
follows:“------ the death of a human being from unnatural causes is a very
serious matter, for death is too finite. It invokes a justifiable feeling of
society’s anguish and disappropriation”
[35]
Indeed dire circumstances call for condign measures. The time is nigh for
this. Life can be buried forever but the truth will always be found.
[36]
On these premises this appeal fails and is dismissed in its entirety.
16
___________________
E.A. OTA
JUSTICE OF APPEAL
____________________
I agree
S.A. MOORE
JUSTICE OF APPEAL
____________________
I agree
B.J. ODOKI
JUSTICE OF APPEAL
Appellants in person
For Respondents:
A. Makhanya
(Crown counsel)
17